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Carbrey v. Carbrey

MAY 16, 1969.

FRANK C. CARBREY, PLAINTIFF-APPELLEE,

v.

ELLEN M. CARBREY, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of DuPage County, Eighteenth Judicial Circuit; the Hon. WILLIAM L. GUILD, Judge, presiding. Judgment affirmed.

PRESIDING JUSTICE MORAN DELIVERED THE OPINION OF THE COURT.

On December 29, 1967, the plaintiff filed a complaint for divorce in DuPage County. He alleged that he was an actual resident of that county but did not state the period of his residence. The grounds for the divorce in the original complaint were both mental cruelty and habitual drunkenness. In January, 1968, the defendant appeared and answered the complaint and also filed a counterclaim for separate maintenance on grounds of desertion. Ultimately the counterclaim was amended to seek a divorce.

On April 3, 1968, plaintiff filed an amended complaint for divorce alleging that he and defendant had been residents of the State of Illinois since July 7, 1967, and further charging grounds of mental cruelty in that the defendant had been a habitual alcoholic for a period of fifteen years and as a result of her alcoholism had forged numerous checks, had required the calling of police, the eviction of plaintiff from certain premises and the causing of such indebtedness on the part of the plaintiff as to force him into bankruptcy.

The trial court, sitting without a jury, heard numerous witnesses and at the conclusion of the proofs found that the defendant was "a chronic alcoholic, has been for the past ten years." The trial court then ordered that the divorce would be granted to the plaintiff on the grounds of habitual intoxication, that the counterclaim of the defendant would be denied, and that the custody of the minor children of the parties would be vested in the plaintiff.

This appeal followed raising five issues. First, that the decree was void because the trial court lacked jurisdiction. Second, that the one-year residence requirement of section 2 of the Divorce Act (Ill Rev Stats 1967, c 40, § 3) had not been met. Third, that the charge of mental cruelty in the amended complaint and the findings of the trial court that the decree would be granted on grounds of habitual intoxication were at variance and fatally defective. Fourth, that the defense of recrimination had been proven and consequently barred the divorce and, finally, that the trial court erred in granting custody of the minors to the plaintiff.

Our examination of the case leads us to the conclusion that the trial court was correct and that it should be affirmed.

There is no need for us to detail the lengthy record of alcoholism exhibited in this case. Suffice it is to say, the trial court's findings that the defendant was a chronic alcoholic and had been for at least ten years before the trial is amply supported in the record.

The more difficult problem in this case arises over the fact that section 2 of the Divorce Act, supra, requires that a plaintiff be a resident of this State for one year prior to bringing a suit for divorce or a resident of this State for six months provided the grounds for divorce occurred within the State.

When the original complaint was filed, the plaintiff had not been a resident of Illinois for six months, and when the amended complaint was filed he had been a resident of Illinois for six months, but not for one year.

While the defendant answered instead of raising the question of jurisdiction, and thereby vested the court with jurisdiction over her person, the parties would not have power to vest the court with jurisdiction over the subject matter. However, subsequently and after the plaintiff had been a resident of Illinois for at least six months, an amended complaint was filed alleging grounds of mental cruelty and specifically referring to a long period of intoxication.

Assuming the plaintiff has been within the state for 6 months but not for one year, the question then becomes, may a ground for divorce which has a time period for its basis, ripen into a cause of action when only the latter portion of that time period occurred within the State of Illinois and the original inception occurred without this State?

In the early case of Ashbaugh v. Ashbaugh, 17 Ill. 476, 477 (1856), the inception of desertion actually occurred between husband and wife in Canada. The period of desertion became complete while the defendant resided in Illinois. The Supreme Court held that the plaintiff could obtain a divorce here in Illinois because the grounds of desertion had become complete while the defendant was a resident of this State.

In the case of Conrad v. Conrad, 396 Ill. 101, 71 N.E.2d 54 (1947), the inception of desertion took place in the State of Florida, but the period of desertion was completed while the plaintiff was a resident of Illinois and living in West Frankfort. The wife challenged the divorce on the grounds that the period of desertion must originate and be completed in the State of Illinois. The Supreme Court said at pages 104-105, "Appellant contends that all of these jurisdictional facts must exist while the appellee lived within the territorial limits of the city of West Frankfort before any cause of action arose. This contention is not well founded. To hold that the original act of leaving must occur in this State would deprive bona fide residents of this State from having their causes of action heard by the courts in their own State. . . . Inasmuch as appellee was a resident of the city of West Frankfort when the act of desertion became complete in this State, then the cause of action had arisen within the corporate limits of the city of West Frankfort and there was no error in the city court of West Frankfort dismissing the appellant's motion to vacate the decree."

We conclude, therefore, that the rule of law is that a ground for divorce requiring a period of time to be completed may originate anywhere and that the Courts of Illinois will have jurisdiction to hear it if it is completed while the person bringing the ground is a resident of Illinois, ...


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